Enter your email to subscribe:

William Fischel (Dartmouth College Dept of Economics) has posted a short article from Regulation Magazine on SSRN. In the article, Before Kelo, Fischel takes a fascinating look at the notorious Poletown case, arguing convincingly that the project might not have gone forward had it been funded by Detroit taxpayers rather than by state and federal grants. Fischel also argues that the Kelo project likely wouldn't have gone forward if it had been funded on a local, rather than state, level.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Indian land claims have long been a foundational and fundamental subject of American law. Indians and Indian tribes have long been acutely aware that their land base has been shrinking since the beginning of the European invasion. Outnumbered, outgunned, and outbrutalized, Indians have had little choice but to recede. But Indians and Indian tribes have never forgotten their sacred homelands and continuously seek to restore whatever lands they can. This behavior, it seems, baffles non-Indian legal experts and legal philosophers, who argue that these “ancient” Indian land claims should be dismissed. Conversely, there are legal scholars who argue that the Indian rights to land are as absolute as to justify the restoration of vast amounts of land to Indian tribes. In short, there is a wide spectrum of choice for courts in relation to Indian land claims – courts can dismiss the claims altogether or restore the vast tribal land base or choose a middle ground.

Until recently, the courts have chosen a version of the middle ground, best exemplified by the Supreme Court’s decisions in the Oneida Indian Nation’s land claims. The federal courts might not approve of tribes suing hundreds or thousands of “innocent” landowners for eviction, but were willing to allow tribes to sue for trespass damages. The Second Circuit recently rejected this long-established middle ground in Cuygua Indian Nation of N.Y. v. Pataki and dismissed the Cuyuga Indian Nation’s land claims based on the equitable doctrine of laches, relying exclusively on a recent Supreme Court case, City of Sherrill, N.Y. v. Oneida Indian Nation of N.Y.

This Article rejects the conclusions of the Second Circuit and argues instead that there is no principled reason to depart from the middle ground of earlier cases. We choose to begin by discussing tribal land dispossession from the point of view of the Indians who had been victimized by non-Indians. We discuss two instances of tribal land dispossession of the lands of the Michigan Anishinabeg that have yet to be remedied. These forms of tribal land dispossession are remedial under the middle ground of analyzing Indian land claims. We further discuss the origin of equity and its relationship to the law. We introduce the notion that laches is a powerful judicial tool subject to arbitrary and abusive exercise by the judiciary. We conclude our argument by asserting that laches is an improper judicial tool for resolving Indian land claims. We note that non-Indian defendants have long argued that Indian land claims should be barred by laches and, in the most persuasive cases, those defenses have been rejected. We argue that the underlying purpose of laches is not consistent with the exercise of laches by the City of Sherrill and Cuyuga Indian Nation courts. We conclude by lamenting that the dispossession of tribal lands has moved from the 19th century notion of brute force and the 20th century notion of corrupt political processes to the 21st century notion of final and complete judicial action to eradicate Indian land claims.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Bank of America agreed to join the developer Douglas Durst in 2003 in building a 54-story tower in the heart of Midtown Manhattan, giving a psychological and economic lift to a city that was still reeling from the destruction of the World Trade Center.

Mr. Durst said he would not have been able to negotiate with Bank of America or other prospective tenants had the state not authorized him to use eminent domain, a redevelopment tool that is coming under fire in the wake of a United States Supreme Court ruling last June in a Connecticut case.

Now under construction at 42nd Street and the Avenue of Americas, the Bank of America Tower at One Bryant Park, as the project is known, was decades in the making as the Durst family assembled the site. Ultimately, only two buildings remained, but their owners kept raising the price, Mr. Durst said.

Eventually, the state told Mr. Durst that if he found an anchor tenant the buildings could be condemned even though the site was not in a blighted neighborhood. That threat alone was enough to break the impasse. "Once we had that ability, we were able to quickly come to a resolution on the two properties and meet Bank of America's schedule," Mr. Durst said.

A recent volume of Environmental Law (Rule of Capture in 35 Environmental Law no. 4 (2005)) contains a symposium on the rule of capture. Four of the eight articles from the symposium are now available on SSRN:

This article makes two important comments about how the Rule of Capture as a distributional measure excludes certain groups.

First, The Rule of Capture as formulated by John Locke effectively shut out two kinds of co-claimants from the commons of North America: free original inhabitants and men and women who were in the service of others, even when these people were indispensable to the act of capture. Though the Capture rule resonates as an ethically based distributional principle, its three ethical premises are not carried through when applied to the commons of North America. The three premises are: 1. first in time, first in right; 2. the deservedness of the laboring person who capture the resource; and 3. hunger as a human condition shared by all. The article demonstrates how Native Americans are excluded in Locke's formulation though they have strong claims of first in time, and servants and slaves are excluded despite having strong claims to deservedness as the laboring person who actually does the capturing of the resource. Hence, Locke's formulation as an apologist for conquest and domination appears to have the instrumental and anti-democratic objective of delegitimating the claims of these two groups of peoples to the commons.

Second, using the example of York, William Clark's slave and companion in the Corps of Discovery, the article demonstrates how historical practices operated to continue the subordination of slaves utilized in various phases of conquest. Slaves, like York, were instrumentally used to advance American efforts at Conquest and later settlement. An examination of Lewis and Clark's accounts of York show that these masters treated him with respect and almost partnership while in the wilderness and on Indian lands during the voyage of discovery only to relegate him to slavery in several of its worst treatments when the successful mission returned. Having seen the West, having survived the wilderness travel and aided in the mission's success, York was disappointed in his hopes and expectation of winning freedom for his heroic efforts upon returning to civilization. His treatment was completely at odds with the treatment of every other member of the troupe who were showered with laurels of increased recognition, status, and material gain.

The law of capture, a central feature in Anglo-American property law, has deep historical roots, running at least to Rome, where capturers could create private property in res nullius resources like wildlife (ferae naturae) if they did so consistent with Roman law (imperium). When transferred to English common law, capture doctrine became laden with pervasive restrictions imposed by royal prerogatives, as the English king was said to own, and therefore control, all wildlife that had been unowned in Rome. Thus, the English concepts of royal forests and hunting franchises imposed substantial limits on the capture of wild animals.

In early America, colonial rejection of royal prerogatives seemed for a time to sanction a free-wheeling rule of wildlife capture unknown in England. For example, the English rule allowing landowners to exclude capturers was largely discarded, at least with respect to unfenced lands. But as the overharvesting consequences of expansive capture rules became apparent, American courts rediscovered and republicanized the royal prerogatives into the concept of state ownership of wildlife. This 19th century development was grounded on both sovereign power and public ownership principles, or sovereign ownership, a concept endorsed by the Supreme Court in 1896.

Although during the 20th century the Supreme Court repeatedly limited the state ownership of wildlife where it conflicted with federal law - and finally overturned the case that endorsed the doctrine in 1979 - today nearly every state claims ownership of wildlife within its borders. This article examines that phenomenon and explains both the limits and utility of the state ownership doctrine in the 21st century. We claim that although modern notions of the police power justify expansive state regulation of wildlife, the state ownership doctrine retains vitality because it may bolster or enlarge police power regulation by 1) imposing affirmative duties to protect wildlife, 2) empowering states to collect damage for destriction of wild animals, and 3) offering an affirmative defense against landowner claims of constitutional takings based on restrictive habitat protections.

This article examines the legal universe occupied by animals ferae naturae through an analysis of three cases from the early nineteenth century. The three cases - Pierson v. Post (an 1805 decision of the New York Supreme Court), Arnold v. Mundy (an 1821 decision of the New Jersey Supreme Court of Judicature), and Inhabitants of Stoughton v. Baker (an 1808 decision by the Massachusetts Supreme Judicial Court) - examine the nature of property in such animals. In doing so, the decisions shed light on four recurrent topics in natural resource law: common property, capture, private property in land, and the public trust. Animals ferae naturae have particular relevance to these issues. For Locke and the Enlightment civilians, animals ferae naturae were the paradigm of an unowned thing; they were the then-current analog of the state of nature, that imagined starting point for society. Wildlife law, in short, was often a speculation about the nature and sources of property. The early nineteenth century also has particular relevance to these questions. During this period, federal and state judges worked to reconfigure the common law to account for two ongoing revolutions: the political revolution from monarchy to republic and the economic-social revolution from agrarian-communitarian to market-individualistic. As such, the cases provide insight into the balance between public and private: what scope of unchecked autonomy is to be accorded the individual? what does the individual owe to society?

The Wilderness Act of 1964 is the principal legal mechanism for preserving wilderness in the United States. The law now protects over 100 million acres of federal land, half of which is in Alaska. Yet the contested meaning of the term wilderness continues to affect the management of those wilderness areas, and the designation of additional lands as wilderness areas. Much current thinking about wilderness emphasizes the ecological and recreational interests that Congress cited when it enacted the law. These justifications for wilderness preservation are important, but they are incomplete. They are best supplemented by a better understanding of the spiritual values of wilderness. Religious conceptions have long informed American attitudes toward wilderness, beginning with the hostility that early settlers gleaned from Old Testament images of wilderness lands, and later appearing throughout the writings of John Muir. More recently, the witnesses testifying on behalf of the proposed Wilderness Act during the 1950's and 1960's repeatedly sounded spiritual themes, including biblical examples of the values of wilderness. The decades since the enactment of the law have produced a substantial theological literature that explores the meaning of wilderness. This article integrates the writing about the spiritual values of wilderness into the discussions of the management of wilderness areas, relying upon the examples of Alaskan wilderness lands to consider how to identify new wilderness areas and how to manage existing areas.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Eduardo Penalver and Sonia Katyal (both of Fordham University School of Law) have posted Property Outlaws on SSRN. Here's the abstract:

Most people do not hold those who intentionally flout property laws in particularly high regard. The overridingly negative view of the property lawbreaker as a wrong-doer comports with the nearly sacrosanct status of property rights within our characteristically individualist, capitalist, political culture. This dim view of property lawbreakers is also shared to a large degree by property theorists, many of whom regard property rights as a fixed constellation of allocative entitlements that collectively produce stability and order through ownership. In this Article, we seek to rehabilitate, at least to a degree, the maligned character of the intentional property lawbreaker, and to show how property outlaws have played an important role in the evolution, modification, and transfer of property entitlements. We develop a typology of the property outlaw by introducing three particular kinds of property lawbreakers - the acquisitive outlaw, the expressive outlaw, and the intersectional outlaw. Descriptively, we show that each type of property outlaw has enabled the reevaluation of, and, at times, productive shifts in the distribution or content of property entitlements. What emerges from this study of the property outlaw is an alternative vision of property law that focuses, not only on its capacity for fostering order and stability, but also on its dynamic function as a site for the resolution of conflict between owners and non-owners. We argue that, if property is to perform this dynamic function, the law should be careful not to over-deter those who conscientiously and nonviolently refuse to abide by existing property arrangements.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Entirely apart from the substantive justification for existing private property rights, there are several reasons why property is, unavoidably, a morally uncomfortable subject.

First, legal property rights are and must be the products of determinate legal rules. As such, they inevitably will diverge in some of their applications from the moral principles that support them.

Second, property rights suffer, more than other legal rights, from problems of transition. Most or all justifications for private property envisage secure rights on which people can and will rely. As a result, there may be genuine moral value in the preservation of rights that were not morally justifiable at their point of origin.

Finally, property rights expose fundamental conflicts among the different conceptions of justice - distributive, corrective, and retributive justice - that guide our system of law.

It follows that even if private property rights are in fact morally justified, they are likely to generate moral unease.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]